Sexual freedom, law and morality

Arvind Jain writes that Indian laws conform to the social system prevalent in the country – a social system that is patently patriarchal and gives sexual freedom only to men. The women are expected to adhere to the norms of social morality and the law, both

In the Name of Justice

“Beti Bachao, Beti Padhao” (Save your daughter, educate her) may be a popular political slogan but what the Indian psyche wishes for is the ideal daughter-in-law. The urban middle class does not want daughters and if they happen to have any, they should be completely protected from any (external) sexual assault. It is another matter that women are not safe even in their own homes. Sexual violence, murders, suicides, harassment for dowry and acid attacks are growing.

Men want women who wear a burqa or cover their faces with veils as their wives (Sati, Sita, Savitri, Parwati, Tulsi or Anandi) but for their enjoyment and for marketing of goods, they want “bold and beautiful” bikini-clad women. And so there are contests like Miss World, which bring in millions of dollars, pounds, dinars or eye-popping quantities of gold for the winners. For those who refuse to fall in line, there is sexual violence, oppression and exploitation. As for men, they have complete sexual freedom, whether in their homes or outside.

Now, a woman has no right to complain against her adulterous husband or his female companion (Section 198 IPC)

In brief, the “new law” gives men the legal right to “cohabit” with women before marriage, rape their wives and subject them to their sexual whims and fancies and have adulterous (call girl, escort, prostitute or lover) relations. Homosexuality has ceased to be a crime, too. There is no ban on women entering Sabarimala and no ban on men entering red-light areas. Adulterous women won’t even be entitled to maintenance allowance. There will be no arrests in cases of dowry harassment. Enough of misuse of dowry laws! Let adultery grow; let flesh-trade flourish, let incidents of oppression and exploitation of women and of sexual violence shoot through the roof. The women have only one option. They can keep on shouting #MeToo in social media.

Adultery law unconstitutional: Extramarital relations not a crime for men

The five-judge Constitution Bench of the Supreme Court (Dipak Misra, Ajay Khanwilkar, Rohinton Nariman, Dhananjay Chandrachud and Indu Malhotra) declared Section 497 of the IPC, which dealt with adultery, as unconstitutional in the case of Joseph Shine versus Union of India (Writ Petition, Criminal, 194/207 dated 27.09.2018). The top court of the country had no option but to strike down the 158-year-old law, as giving wives the right to complain against their adulterous husbands would have exposed the true character of men – the darlings of the patriarchal system.

Definition of adultery

Before being thrown out of the statute book, Section 497 of the IPC said: “Whoever has sexual intercourse with … wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment for a term which may extend to five years, or with fine, or with both. In such case the wife shall not be punishable as an abettor.” However, having voluntary sexual intercourse with a person other than one’s wife or husband is considered a valid ground for seeking divorce for both men and women. Adultery thus has different definitions – as a crime and as a basis for divorce.

Section 497 IPC declared that having sexual intercourse with the wife of another man without his consent or connivance is adultery. Thus, wife-swapping was not a crime. I don’t know whether the practice of wife-swapping prevails in Indian society but some years ago, I had read a story on this theme, which left me hot under the collar (Gyanprakash Vivek’s story Anttah, p 24, Hans, October 1998). A story on wife-swapping titled Baahon Ke Darmiyan by famed Hindi writer Gitashri is available on a website.

Be that as it may, this means that a man can have consensual sexual relations with any adult woman who is unmarried, widowed or divorced without committing any crime. And that woman can even be his mother, sister, daughter, aunt or niece (though he cannot marry some of these women). He can even have sexual relations with a married woman, provided her husband has no objection. The husband may give his consent or look the other way, if it suits his interests. After all, it is interests that matter. Shani’s story Imarat Girane Wale and Krishna Sobti’s novel Dilo Danish are notable in this respect. And if you are interested, you may also read Madame Bovary, Lady Chatterley’s Lover or Anna Karenina.

To sum up, the law is that the wife is her husband’s property. He can use it or not use it; allow another man to use it or not use it. The wife’s wish, willingness or consent is of no consequence at all. If a woman, without her husband’s consent, enters into sexual relationship with another man, it will mean jail for the man and divorce for the woman. The wife has no right to file a complaint against her adulterous husband or his sexual partner. (Section 198 IPC).

The adultery law (Section 497 IPC) not only gave men all the freedom to have sex outside marriage but also, if needed, to use the wife as a “property” to serve his interests. Newspaper reports about married couples running prostitution rackets are common enough and serve to confirm this possibility.

In fact, Section 497 IPC was the protective shield that was leading to the spread of prostitution and call-girl racket in the country. The Immoral Traffic (Prevention) Act, which deals with prostitution, does not prescribe any punishment for the male customers. The middlemen, prostitutes and call girls are held guilty. Flesh trade is worth billions of rupees but the economic status of prostitutes or call girls is pitiable. Let alone women of loose moral character, Indian law does not even consider forced sex with wife above 18 years of age as rape (exception to Section 375, IPC). Some years ago, a British court had held a man guilty of rape for forcing his wife to have sex with him. But it would be foolish to expect Indian courts to deliver such judgments.

Why can’t the courts be guardians of social morality? Social morality may or may not have anything to do with the law but the law should have its own morality. The big chasm between social morality and the law is promoting immorality, debauchery and sexual violence. Is the law helpless in controlling these evils? If there is no legal restraint on adultery, won’t it lead to tension, quarrel, violence, divorce, suicide and murder? The worst victims would be women. Is that the objective? That they shouldn’t have an alternative or find a way out?

Adultery as the basis for divorce

As far as adultery is concerned, legal provisions relating to divorce are far better than the criminal law. In divorce law, having sexual relationship outside marriage is considered adultery for both men and women. The definition is better, but how difficult or easy is it to prove adultery? Mostly, men level concocted charges of adultery on their wives and use this provision to leave them and later deny them maintenance allowance.

A woman pleaded for divorce (AIR 1982, Delhi 328) after she caught her husband red-handed in an objectionable condition with a girl. The lower court granted her plea but Justice Mahendra Narayan of the Delhi High Court, overruled the verdict saying that what the wife had proved at the most was “uncivilized behaviour” on the part of the husband and not adultery. The wife, the honourable judge argued, could not prove that her husband had had sexual intercourse with the girl, which is an essential ingredient of the crime of adultery. He also quoted two judgments of British courts, ruling that sexual relations of the wife with another man were not adulterous if they did not involve intercourse or oral sex. At another place (p 331), the same judgment says that artificial insemination is not adultery because it does not involve intercourse. Men thus have no problems in becoming fathers through artificial insemination. A man can become a father without anyone coming to know that he is impotent. Wives have the right to get artificial insemination but the decision to adopt a child and the right to do so is entirely in the domain of the husband. As for the wife, only her consent is needed. Such is our double-faced law and society!

Men and women are equal partners in any illegitimate relationship. Adults should be free to have any sort of relationship with each other. But the way the law discriminates against married women is not only improper but also unjust. Wives must be given the right to lodge a criminal complaint against their adulterous husbands and the women involved. But the men fear that if that happens, it would put an end not only to their freedom to indulge in debauchery but also to profit from flesh trade, besides rendering tools for exploitation and oppression of women and for dominating them, blunt and useless. How can the law benefit society unless it encourages social morality? When the law cannot preserve and protect social morality how can it uphold justice? Can’t we then say, “Courts do not do justice; they just pronounce judgments and judges are not justices, only arbitrators”? Without morality, isn’t justice impotent?

In his judgment in the case, Saumitra versus Union of India (AIR 1985 SC 1618), Justice Y.V. Chandrachud wrote: “Adultery is better defined in civil law than in criminal law. If we concede the argument of the appellant, then section 497 would have to thrown out of the statute books. And that would make adultery unbridled and it would become impossible to punish anyone for adultery. It is in the interest of society that ‘limited adultery’ continues to be punishable.” But other justices and even his son Justice Dhananjay Chandrachud are not in agreement with his arguments.

What did women get from the judgment?

This judgment, on the pretext of gender equality and emancipation of women, will give unbridled freedom to men to indulge in adultery/debauchery/exploitation and flesh trade and will have disastrous long-term consequences. For women, even earlier, adultery was not a crime and they could not be punished for it. Now, amnesty has been granted to men, too. Earlier, wives did not have the right to complain against their adulterous husbands or their companions. But now, since adultery is no longer a crime, there can be no complaint, period. Married women have gained nothing from the judgment – they could not have. Some overenthusiastic women are happy that they are no longer chattels of their husbands and the media is talking about about how the judgment has ushered in gender equality. Now, sexual intercourse out of wedlock is Constitutional and legal. The law will not guard against immorality. It is impossible to comprehend what the women have gained from the judgment that is making the patriarchal media jump with joy.

The pretext of gender equality and dignity of women

If sexual relationship between consenting adults is not a crime then shouldn’t Immoral Traffic (Prevention) Act be scrapped? Having sexual intercourse with a woman less than 18 years of age is considered rape. Lakhs of minor girls are raped every day but not even an FIR is registered. Why? If adultery is not a crime then what is wrong with polygamy? Till men have the legal right to rape their adult wives, such judgments are meaningless and useless. Married women would continue to be considered the property of their husbands in the eyes of the law. Just show the courage of scrapping the immunity to husbands from the charge of marital rape. The law relating to restitution of conjugal rights continues to be on the statute books. What has changed since the Rukhmabai case of 1884 (read Enslaved Daughters by Sudhir Chandra)?

Adulterous women not entitled to maintenance allowance

I had written in an article 18 years ago: “The explanation to Sub-Section 3 of Section 125 of the CrPC says, ‘If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife’s refusal to live with him.’ But Sub-Section 4 provides that, ‘No wife (even divorced) shall be entitled to receive an allowance from her husband (or former husband) under this section if she is living in adultery.’ This means that a man (husband) has the legal right to indulge in adultery or keep a mistress but if a wife (adulterous, of low morals, prostitute, etc) behaves similarly, she will not be entitled to maintenance allowance. There are similar provisions in section 25 of Hindu Marriage Act 1955, Special Marriage Act 1954 and Parsi Marriage Act 1936. Words like ‘living in adultery’ and ‘should be chaste’ have been used in these statutes. If a woman converts to another religion, then too, she won’t be entitled to maintenance. So, if a woman wants to receive maintenance allowance then she should be a Sati, Savitri or else … The Law Commission of India, in its 132nd report (1991), had recommended scrapping of these provisions but no one is ready to pay heed to the pain and misery of women.” [Nari, Nyay Aur Naitikta, Arvind Jain, Hindustan, 2 June 2000)

The list of punishments for being a woman is a long one but we will not talk about them here. Extra-marital relations are not a crime but the children (illegitimate) born of such relationships are the responsibility of women. “Better use ‘Nirodh’ [condoms] for safety” and don’t forget that an adulterous woman will be looked down upon as lowly, sinful and criminal. The law may have freed her from criminal culpability but would the men of our semi-feudal society forgive her? There are Khap Panchayats and honour killings to deal with such women. Bang, bang! The law continues to be lenient towards a man who shoots his wife on the spur of the moment on finding her in a compromising position with another man. (Those interested can read the judgment in the case of K.M. Nanavati versus State of Maharashtra – AIR 1962 SC 605 – or recall the films Yeh Raaste Hain Pyar Ke and Rustam.)

Homosexuality not a crime

Before adultery law was declared as “unconstitutional”, the Delhi High Court had decriminalized homosexuality (Section 377, IPC) in the cases of Naz Foundation (2209 DRJ 1) and Suresh Kaushal (2014 (1) SCC 1) but the Supreme Court, turning down the High Court order, had said that Parliament might frame a law on homosexuality. However, in 2018, disposing of the case of Navtej Singh Johar versus Union of India (572/2016 and others), a Supreme Court bench of Chief Justice Dipak Misra and Justices Ajay Khanwilkar, Rohinton Nariman, Dhananjay Chandrachud and Indu Malhotra, overruling its earlier order on the homosexuality law (section 377, IPC), said that if adult men or women, with mutual consent and in private, establish homosexual relations (unnatural sexual relations), then it would not be considered a crime. All the justices pronounced their judgments, running into hundreds of pages, separately. Thus, the patriarchal society allowed its sons and daughters to have homosexual relations and thus initiated “total sexual revolution”.

Amendments to laws relating to sexual violence and rape

After the Nirbhaya case (17 December 2012) and the nationwide protests that followed, J.S. Verma Commission was set up overnight to recommend changes in the laws relating to sexual violence. An ordinance was issued in February 2013 and subsequently Parliament ratified it. Under the amended Section 375 of the IPC, the age of consent for girls was raised from 16 to 18 years to “protect” the daughters. Even consensual sexual intercourse with a woman up to 18 years of age is now thus considered rape. But the amended law gave the husbands not only the right to have sexual intercourse with their wives above 15 years of age but also to indulge in “other sexual acts” (unnatural sex) without being considered rape (Exception to Section 375 IPC). The police or a court cannot take cognizance of such a complaint (CrPC Section 198, Sub-Section 6). It is another matter that four years later (in October 2013), a bench of Supreme Court’s Justices Madan B. Lokur and Deepak Gupta, in their 127-page judgment, ruled that a husband having sex with his wife between 15 and 18 years of age would be guilty of rape. But the honourable judges kept mum about wives of 18 years and above. So, an adult married woman continues to be her husband’s sex slave. One does not know when this country will start wondering why husbands should be given immunity against marital rape.

Death for rape of girls less than 12 years of age

In 2018, a provision was made for sentencing to death rapists of girls of less than 12 years of age. After the promulgation of the Criminal Law (Amendment) Ordinance 2018 dated 21 April 2018, the minimum punishment for rape of a girl of less than 12 years has been laid down as imprisonment for 20 years, which may be extended to life imprisonment or death sentence. The ordinance has amended the relevant sections of the IPC, Indian Evidence Act, CrPC and Protection of Children from Sexual Offences Act 2012. This was mainly done to assuage the public anger against the Unnao and Katua rape incidents – a replay of what was done after the Nirbhaya incident. To save themselves from the noose, the perpetrators of such crimes will now ensure that there is no witness to their crime and this may translate into murder of minor rape victims. Statistics show that this is already happening. “Judicial wisdom” will decide the punishment and it is possible that due to the courts hunting for “rarest of rare cases”, the quantum of punishment for such crimes may become even less than earlier. Unless the courts are serious and sensitive, mere changes in the law will not serve any purpose. If it is implemented with sincerity, the ordinance will become a noose around the neck of patriarchy. Incidentally, despite Supreme Court’s final verdict, those convicted in the Nirbhaya case are yet to be hanged.

Live-in: Way to sexual freedom

Consensual sexual relationship between adult men and women has never been considered a crime in any law. Unmarried couples living together have been husbands and wives in the eyes of the law for a long time (Domestic Violence Act 2006). In the case of S.R. Batra versus Tarun Batra (Civil Appeal 5837/2006), a two-bench judge bench of the Supreme Court, comprising Justices S.B. Sinha and Markandey Katju, ruled that under Section 17(1) of the Act, a woman could claim the right to live only in the home of her husband and not of her in-laws. This means that her in-laws can throw her out any time.

Luring a woman into having sexual intercourse on the false promise of marriage is considered rape, but only if the man did not intend to get married to the woman from the very outset. This is sexual exploitation on the pretext of marriage. Men who develop physical intimacy with women after promising marriage continue with the relationship till they become pregnant. Abortion is difficult after a certain time has passed and the family members come to know of it. In most of such cases, men are charged with rape.

The fact is that most of the cases of sexual exploitation (violence) are meticulously planned conspiracies to satisfy uncontrolled lust. Prurience and sexual fantasies are often rooted in the desire for dominating women. Before committing a rape or a “date rape”, the man has already “rehearsed” the crime many times in his mind. But more often than not, it is the victims who are blamed and stigmatized and even their family members torture them to preserve the so-called “prestige” of the family. In such scary religious, cultural and social landscape, where is the space for women to take voluntary decisions?

Pre-marital sex is not a crime

The apex court had this to say with regard to pre-marital sex: “While it is true that the mainstream view in our society is that sexual contact should take place only between marital partners, there is no statutory offence that takes place when adults willingly engage in sexual relations outside the marital setting, with the exception of ‘adultery’ as defined under Section 497 IPC.” (S. Khushboo versus Kanniammal and Others)

“Where an adult woman marries an adult man of another caste, their sexual intercourse in live-in relationship cannot be considered a crime (with the exception of adultery), although it might be considered immoral. An adult woman can marry a person of her choice or live with him.” (Lata Singh versus State of UP and others AIR 2006, SC 2522)

Misuse of dowry-harassment laws by women

While supporting sexual freedom, the judiciary, going against its liberal and reformist activism, has been pronouncing judgments saying that married women are misusing laws related to dowry harassment. In the case of Arnesh Kumar versus State of Bihar (2014 (8) SCC 273), a Supreme Court bench of Justices Chandra Mauli Kumar Prasad and Pinaki Chandra Ghosh stayed the arrest of the people accused of dowry harassment. Another division bench of the Supreme Court (Justices Adarsh Kumar Goyal and Uday Ramesh Lalit) on 27 July 2017, quoting misuse of dowry-harassment laws, directed the setting up of enquiry committees in all cities, besides issuing other directives (Rajesh Sharma versus State of UP, Criminal Appeal 1277/2014). This judgment gave unlimited leeway to husbands and their families torturing women for dowry and pushed daughters-in-law to a wall.

The judgment drew countrywide condemnation. A year later, after hearing a review petition, the Supreme Court (Justices Dipak Misra, Ajay Khanwilkar and Dhananjay Chandrachud) overruled its own judgment and declared that the setting up of enquiry committees was illegal (Social Action for Human Rights Versus Union of India, Criminal Appeal 1265/2017). But this judgment on Section 498A of the IPC is unlikely to bring any relief to the women facing harassment for dowry. Yes, the restrictions resulting from the earlier judgment have been covered in fine silk. Aren’t the legislature and the judiciary concerned only about the safety of their own families? Who has the time to worry about the daughters-in-law? Let them keep making rounds of the courts to get the right to live and die with dignity.

Backdoors of law

Contracting or solemnizing a child marriage is a cognizable but bailable offence, punishable with imprisonment that may extend to two years or a fine of Rs 2 lakh or both. But giving triple talaq has been made a cognizable and non-bailable offence with a provision for three years in jail or fine or both.

If a boy more than 18 years of age marries a girl less than 18 years of age, he commits a crime and can be punished with imprisonment or up to two years or fine or both. (Section 9 of The Prohibition of Child Marriage Act, 2006).

This clearly means that if the boy is also below 18 years of age, then he does not commit a crime. The Child Marriage Restraint Act came into force in 1929. But to date, we have not been able to outlaw the practice. Doesn’t Parliament, the government and the judiciary know how a backdoor has been left open for child marriages? After all, it is not only a question of rural vote bank but also of religious and cultural sentiments!

Liberal revolutionary reform or cosmetic surgery

It is clear that this judgment, based on the notions of modernity prevalent in Western universities and on the concept of individual freedom, would have long-term consequences. Nothing that benefits society can be based on arguments crafted in opposition to the principles of social responsibility. What shape men-women relationships will take with time and without transgressing cultural limits is difficult to say. Before testing laws related to live-in relations, adultery and homosexuality on the touchstone of the Constitution, it would have been better to discuss and debate the entire gamut of related laws and then arrive at a decision on amending them. If this is not done, anomalies and contradictions will remain. Cosmetic surgery will serve no purpose.

Anyway, a new market for the pleasure of men has been inaugurated. The “Total Sexual Revolution” will also succeed one day. Is this is the new version of patriarchy? It seems the young princes of patriarchy (including homosexuals) now want complete sexual freedom, which they are out to gain through means legal or illegal. If the wife refuses to have sexual relations, they can always seek divorce on the basis of “mental cruelty” and of course, they are free to have sexual relations outside marriage. New facets of patriarchy are coming to the fore every day. We need to dwell seriously on the sexual revolution that patriarchy has initiated for its darlings.

(Translation: Amrish Herdenia; editing: Anil)

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About The Author

Arvind Jain (born 7 December 1953) is an advocate in the Supreme Court. He is known for his writing centred on 'women, society and the law in India'. 'Aurat hone ka Saja', 'Uttaradhikar Banam Putradhikar', 'Nyayachetrey Anayachetrey', 'Yaun Hinsa Aur Nyaya ki Bhasha' and 'Aurat: Astitva aur Asmita' are his thought-provoking works on women and the law. He has also published a collection of short stories, 'Lapata Ladki'. He is a member of the expert committee set up by the Government of India for drafting a Bill to tackle crime against children. He was awarded 'Sahityakaar Sammaan' (by the Delhi government) in the year 1999-2000 and 'Rashtriya Shamsher Sammaan' in the year 2001

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